Privacy not Prism legal challenge
On 13 September 2018 The European Court of Human Rights (ECtHR) ruled that the UK’s mass interception programmes have breached the European Convention on Human Rights.
The Court found that the UK’s mass surveillance programmes, revealed by NSA whistleblower Edward Snowden, did ‘not meet the “quality of law” requirement’ and were ‘incapable of keeping the “interference” to what is “necessary in a democratic society”’.
The landmark judgment marks the Court’s first ruling on UK mass surveillance programmes revealed by Mr Snowden. The case was started in 2013 by campaign groups Big Brother Watch, English PEN, Open Rights Group and computer science expert Dr Constanze Kurz following Mr Snowden’s revelation of GCHQ mass spying.
Documents provided by Mr Snowden revealed that the UK intelligence agency GCHQ were conducting “population-scale” interception, capturing the communications of millions of innocent people. The mass spying programmes included TEMPORA, a bulk data store of all internet traffic; KARMA POLICE, a catalogue including “a web browsing profile for every visible user on the internet”; and BLACK HOLE, a repository of over 1 trillion events including internet histories, email and instant messenger records, search engine queries and social media activity.
The applicants argued that the mass interception programmes infringed UK citizens’ rights to privacy protected by Article 8 of the European Convention on Human Rights as the “population-level” surveillance was effectively indiscriminate, without basic safeguards and oversight, and lacked a sufficient legal basis in the Regulation of Investigatory Powers Act (RIPA).
In its judgment, the ECtHR acknowledged that ‘bulk interception is by definition untargeted’; that there was a ‘lack of oversight of the entire selection process’, and that safeguards were not ‘sufficiently robust to provide adequate guarantees against abuse’.
In particular, the Court noted ‘concern that the intelligence services can search and examine “related communications data” apparently without restriction’ – data that identifies senders and recipients of communications, their location, email headers, web browsing information, IP addresses, and more. The Court expressed concern that such unrestricted snooping ‘could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with’.
The Court acknowledged the importance of applying safeguards to a surveillance regime, stating: ‘In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse.’
The Government passed the Investigatory Powers Act (IPA) in November 2016, replacing the contested RIPA powers and controversially putting mass surveillance powers on a statutory footing.
However, today’s judgment that indiscriminate spying breaches rights protected by the ECHR is likely to provoke serious questions as to the lawfulness of bulk powers in the IPA.
UPDATE: We’re going to the European Court of Human Rights
You can still donate if you wish. This will go towards future legal work to stop UK mass surveillance.
That’s right,we’ve got a full hearing at the European Court of Human Rights!
This is huge news as very few cases are ever heard by the Court. The vast majority of cases (even successful ones) are decided on the basis of written submissions only. In view of the importance of the issues in this case, it seems that the court has exceptionally decided to hold a hearing. It just goes to show that privacy remains a critical issue, not just for everyday citizens but in the courts as well.
After much back and forth over the past 4 years with the UK Government about the case, the court have told us that they want to hear from us and other privacy groups who have launched similar cases against the intrusive UK surveillance regime known as RIPA.
On the 7th November, Big Brother Watch, Open Rights Group and English Pen along with 10 other NGOs from the UK, the US and Germany will have the chance to put to the court our concerns.
We are extremely grateful for the generosity of all those who have already donated – we couldn’t have got this far without you.
We are still fundraising for our final costs. Every penny will help us and our legal team who have worked tirelessly on behalf of all UK citizens, against the intrusive surveillance regime of the UK Government.
The European Court has completed its preliminary examination of the case and has communicated it to the British government, asking it to justify how GCHQ's practices and the current system of oversight comply with the right to privacy under Article 8 of the European Convention. The court has also given the case a rare priority designation.
However, in April 2014 the court delayed the case from going forward awaiting the judgment in another case being heard by the UK's Investigatory Powers Tribunal. The Investigatory Powers Tribunal has now published two judgments in that case. We have recently updated the court and asked it to lift the adjournment, so we expect the case to proceed soon.
Thanks to the generosity of over 1400 people, we met and exceeded our first fundraising target in just 48 hours and raised £27,279. This covered the costs of the first stage of our legal challenge against unlawful government surveillance of our digital communications, and also helped maintain and develop this site.
The speed with which people sent in donations shows how strongly the public cares about mass surveillance. We hope politicians will note the depth of feeling on this issue.
We're now fundraising for a new target of £40,000 towards the legal costs of the next stage of the case.
Thank you again for your support.
Recent disclosures that the government routinely taps, stores and sifts through our internet data have alarmed experts and internet users alike. It is alleged that the government has used the US's PRISM programme to access data on British citizens stored by US internet corporations. Through its own TEMPORA programme, the government is alleged to tap into the sub-ocean cables that carry the UK's and the EU's internet activities around the world and stores and sifts through that data, even if it is an email or a call between two British or EU citizens. Furthermore, the UK has granted the US National Security Agency unlimited access to this data.
These practices appear to have been authorized by government ministers on a routine 'rolling' basis, in secret. Existing oversight mechanisms (the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Parliamentary Intelligence and Security Committee and the Investigatory Powers Tribunal) have failed. The legislation that is supposed to balance our rights with the interests of the security services is toothless.
That is why Big Brother Watch, Open Rights Group, English PEN and Constanze Kurz have taken the unusual step of instructing a legal team to pursue legal action on our behalf and on behalf of all internet users in the UK and EU. First, our lawyers wrote to the government demanding that it accepts that its authorization practices have been unlawful and that it consult on a new, transparent set of laws for the future. The government refused and invited us to submit a case to the Investigatory Powers Tribunal. But the Tribunal is a creature of the very statutory regime which has failed and would not offer an effective remedy. It is unable to rule that the legislative regime breaches our privacy rights, it is conducted largely in secret and there is no right of appeal. The European Court of Human Rights has previously decided that this tribunal does not provide an effective remedy for privacy victims. So we will take our case directly to the European Court of Human Rights. It will decide whether the government's surveillance activities and the existing legislation sufficiently protect the privacy of UK and EU internet users.
Learn more about the case (includes full documents)
Big Brother Watch, Open Rights Group, English PEN and German internet campaigner Constanze Kurz are challenging the UK's activities before the European Court of Human Rights. Our lawyers will have to fight every step of the way. We have raised our legal fees but you can still help fund our campaign costs.